(i) The document in question

1. Irving consistently argues that far from driving on Nazi Germany's antisemitic policies, Hitler frequently personally intervened to stop them or water them down. One key document which he uses to support his case is what he describes in the Preface to the 1991 edition of Hitler's War as "an extraordinary note dictated by Staatssekretär Schlegelberger in the Reich Ministry of Justice in the Spring of 1942: "Reich Minister Lammers", this states, referring to Hitler's top civil servant, "informed me that the Führer has repeatedly pronounced that he wants the solution of the Jewish Question put off until after the war is over." Whatever way one looks at this document, it is incompatible with the notion that Hitler had ordered an urgent liquidation programme." 1

2. According to Irving, 'no other historians have quoted this document, possibly finding its content hard to reconcile with their obsessively held views' about Hitler's responsibility for the extermination of the Jews.

3. Irving's claim that no other historians have quoted this document is pure invention. It must be so, since he has made a point elsewhere of claiming on more than one occasion that he never reads the work of other historians. In fact the Stuttgart historian Eberhard Jäckel published an article about the note as long ago as June, 1978.3 Indeed it was Jäckel who first informed Irving of the document's existence, a fact that Irving himself acknowledged.4 The full text of the typewritten document is as follows:

Reich Minister Lammers informed me that the Führer had repeatedly explained to him that he wanted the solution of the Jewish Question put back until after the war. Accordingly the present discussions possess a merely theoretical value in the opinion of Reich Minister Lammers. But he will be in all cases concerned that fundamental decisions are not reached by a surprise intervention from another agency without his knowledge.5

However, the interpretation of this document is by no means as straightforward as Irving's description of it implies.

4. The document can be found in a folder of Reich Ministry of Justice files held at the German Federal Archives in Berlin (R 22/52). In terms of its appearance, it is a very unusual document: it has no date, no signature, none of the abbreviations usually used by the leading officials in the Ministry of Justice when signing memoranda, and not even an internal reference number (Aktenzeichen). The only direct clue to the background of the document is the name of the State Secretary in the Ministry of Justice, Freisler, which appears in handwriting above the hand-written abbreviation 'UB IV' and 'UB V' (possibly references to internal departments in the Ministry of Justice) in the bottom left-hand corner. However, this writing appears not to be by Freisler himself, and it is not clear from the note itself whether Freisler is the author. The handwriting rather suggests that Freisler and two internal departments of the Ministry of Justice were to be informed of the content of the note. All the handwriting can establish is that the note was apparently written before August 1942, when Freisler left the post of State Secretary on his appointment as President of the People's Court.

5. When trying to analyse documents such as this, historians have to attempt to establish their background by examining the context of the file in which the document are located. Even this is far from straightforward in the present case. The file (R 22/52) is not an original file kept by ministerial officials in the 'Third Reich', but rather a large collection of documents (204 pages) put together after 1945. It contains various original and copied documents relating to issues regarding Jews in Germany which touched in some way on the authority of the Ministry of Justice, from the forcible 'Aryanisation' of Jewish property in the late 1930s, to the implications of the 13th Verordnung zum Reichsbürgergesetz of 1 July 1943.

6. Of all the documents collected in the file (R22/52), only five bear an older page reference in the top left corner (01/108 - 01/112). This older pagination has subsequently been crossed out, indicating that these five documents, which include the document in question ('Schlegelberger note'), originally belonged to the same file or context. However, this older page reference does not appear to be a German ministerial reference, nor is it an archival reference (these traditionally appear on the top right side of a page where the documents, as here, are single-sided). It is most likely that the deleted pagination was stamped on these five documents by the Allies in preparation for the Nuremberg trials. This theory is confirmed by documents prepared by the Office of U.S. Chief of Counsel. In a staff evidence analysis of 22 June 1946, the five documents are listed together as located in the Ministry of Justice files.6

7. This conclusion still does not allow the document in question ('Schlegelberger note') to be put into context beyond any reasonable doubt. For only three of the five documents clearly belong in the same context, namely that of ongoing discussions about the treatment of so-called 'mixed Jews' or 'half-Jews' (Mischlinge) and German Jews married to non-Jewish Germans (Mischehen) during the Spring of 1942. These three documents are as follows: (1) A letter by State Secretary Schlegelberger to the Head of the Reichskanzlei, Hans Heinrich Lammers. In this letter, dated 12 March 1942, Schlegelberger raises objections to proposals regarding the fate of certain Jews and 'mixed Jews', which had been made at a conference on 6 March 1942, and requests a personal meeting with Lammers in that matter. (2) Lammers's reply to Schlegelberger, dated 18 March 1942. Writing from Hitler's headquarters, Lammers informs Schlegelberger that he expects to return to Berlin at the end of the month, and would then arrange a date for a meeting.8 (3) A letter by Schlegelberger to various party and state agencies, dated 5 April 1942, regarding proposals for the treatment of 'half-Jews' and Jews in 'mixed marriages'.9

8. By contrast, the fourth document dates not from spring 1942, but from 21 November 1941. It is an internal memorandum, signed by Ministerialdirigent Lutterloh, a senior civil servant in the Ministry for Justice with responsibility for personal and organisational matters. In the memorandum, Lutterloh noted that

With reference to the current situation of the Jews, discussions are taking place in the Ministry as to whether the Jews are to be deprived of their right to take part in court proceedings, and whether their representation before a court is to be regulated in another way. In this matter the deciding factor is whether an immediate expulsion of all Jews can be reckoned with.10

10. At that time, the deportations of the German Jews to the East had already started and the view inside the Ministry of Justice was evidently that it made little sense to draw up new guidelines for the treatment of Jews before German courts if there were to be no Jews left in Germany within a short time anyway.

11. It is not immediately clear what the relation the fifth document (the 'Schlegelberger memorandum') has to these other four documents. There appear to be three different possibilities.

12. First, it might not stand in any relationship with either documents 1-3 or document 4. This does not very likely, yet this possibility cannot be totally dismissed. It is at least possible that the Allies, when collecting the five documents under examination here, mixed them together from different parts of the same file. In this case, the dating and meaning of the document would remain obscure. It may well have been written in 1940 or 1941, in which case the reference to Hitler's wish for the postponement of the 'Solution of the Jewish Question' until after the war at this point is perfectly compatible with Hitler having decided on the extermination of all European Jews later on. Indeed, the note in the bottom left-hand corner of the document seems to date it to '17.7' from which a dating to 17 July 1941 would seeem to follow. In this case the document would have referred to a meeting held on on 16 July 1941, at which Lammers but not Schlegelberger was present, along with Hitler, Goring, Keitel, Rosenberg, and Bormann. The Jewish question was almost certainly discussed at this meeting since it was followed on 17 July by the Appointment of Rosenberg + Himmler to their respective responsible posts for the admistration
[sic]
of the occupied Eastern territories. - See ADAP XIII p. 127.

13. Second, the document ('Schlegelberger memorandum') might be linked to the Lutterloh memorandum. As the discussions in the Ministry of Justice about the legal status of Jews in November 1941 were, according to Lutterloh, linked to the question of whether the German Jews would rapidly disappear from Germany or not, it is possible that a senior judicial official asked Lammers about the general direction of Nazi policy towards the Jews. Would they all 'disappear' soon or not?

14. On the whole, this interpretation does not appear to be very likely either, as Lammers would probably not have agreed to a meeting on issue of such comparatively minor importance. There is also no indication in the Lutterloh memorandum that such a meeting was sought by the Ministry of Justice. Still, this interpretation can not be dismissed completely. After all, Lutterloh had asked in his memorandum on 21 November 1941 that his assessment be passed on to State Secretary Freisler, whose name, as we have seen, also appears on the document in question ('Schlegelberger memorandum'). It should be noted that the document ('Schlegelberger memorandum') uses the same term for discussions ('Erörterungen') as the Lutterloh memorandum. Thus, it is at least thinkable that Lammers had informed a senior judicial official (possibly Schlegelberger) sometime after 21 November 1941, that the current discussions in the Ministry of Justice were purely theoretical, as Hitler had stated in the past that the 'Final Solution' would only be carried out after the war.

15. This dating and context would also be perfectly compatible with the notion that Hitler did decide on the extermination of all European Jews at some later date. After all, the document in question ('Schlegelberger memorandum') does not refer to Hitler's present views ( Lammers clearly had not consulted Hitler direcly about the issue, but was merely repeating a series of previous utterings). Thus, Lammers might be repeating views which Hitler held some time in 1941 or even earlier. Indeed, some historians would even accept that Hitler was still voicing similar views in early 1942.

16. Thus the historian Peter Longerich has argued in a recent, document-based study of the National Socialist extermination of the Jews, in early 1942 the Nazi leadership still saw the extermination of Jews in the East (which was in fact already under way) merely as 'pre-emptions of the "final solution" which was first to be carried out to its full extent after the end of the war.' Only in spring-summer 1942 did Nazi policy escalate further, and it was decided that the 'Final Solution' (that is, the systematic extermination of all European Jews) would not be carried out mainly after the war, but already while the war was going on. 11

17. These first two possible interpretations of the document cannot be dismissed out of hand, and there will probably always remain some degree of uncertainty about the context in which it should be read and understood. There is a third possibility, however, and that is, that the document in question might be linked to the discussions in the Spring of 1942 regarding the fate of 'half-Jews' and Jews in 'mixed marriages' which form the context of documents one, two and three discussed above. This seems to be the most likely interpretation. It has also been advanced by several historians of Nazi Germany,12 by one of the leading prosecution attorneys at the Nuremberg trials,13 and indeed even by David Irving himself.14 It is this interpretation which will now be investigated in greater detail, in order to establish what seems the most likely context into which the Schlegelberger memorandum can be put.